Entry 2:

Dear Professor Dershowitz:

You say (more emphatically in your book) that the Supreme Court's decisions were not merely wrong but preposterously so and that the five conservative justices who formed the majority in Bush v. Gore were actuated by improper motives. The claims are related; the feebleness of the decisions is your only evidence, apart from unverifiable anonymous tips and rumors, for the charge of corruption.

Yet the Court's first decision (December 4), vacating the Florida Supreme Court's decision extending the deadline for recounts, was unanimous. Your contention that it was off the wall leads you to speculate in your book that the four liberal justices were either dupes of the majority or incompetent tacticians. The court's final decision (December 12), which stopped the recount ordered by the Florida court, you regard as equally preposterous, yet two of the liberal justices agreed that there was a denial of equal protection requiring a remedy, though they disagreed about what the remedy should be. Florida's chief justice, joined by two of his colleagues, had argued that the recount was unlawful. All three are Democratic appointees. Of the 16 judges on the Florida and U.S. supreme courts, 10 thought the recount unlawful. Are they all crooks or dupes?

Article II of the Constitution requires a state's presidential electors to be selected in the manner directed by the state's legislature. All nine justices agreed on December 4 that if the Florida Supreme Court had in effect rewritten the state's election code, on the basis of generalities in the state constitution, in order to permit hand recounts to go forward, its decision could not stand. As you acknowledge in your book, the court's unanimous decision "broadly hinted that the Florida Supreme Court had not deferred sufficiently to the legislature." Indeed. The election code authorizes the secretary of state to interpret and apply the code, under which only an "error in the vote tabulation" permits a full hand recount of a county's votes. She interpreted a tabulating error as one caused by the machines that count the votes, not one caused by a voter's failing to follow the voting instructions. Right or wrong, her interpretation—as the trial judge, a Democrat, ruled—was not unreasonable, and so under settled principles of Florida administrative law the state Supreme Court should have upheld it—and Bush would have been declared the winner in Florida by 930 votes.

After the court-extended deadline for recounts expired and Bush was certified the winner by an improperly diminished margin of 537 votes, Gore sued, seeking additional recounts. The trial judge found that the local election officials had been justified in turning down his demand; again, under settled principles of administrative law this should have been the end of the litigation. But the Florida Supreme Court again reversed, ordering the arbitrarily configured statewide hand recount that the U.S. Supreme Court later stopped. The order made a hash of the code, as the dissenters in the Florida court pointed out, and in doing so, as Florida's chief justice vigorously argued, violated Article II.

Was he out of his mind? You say the code makes the "voter's intent" the paramount consideration in deciding whether his vote counts and that all the Florida Supreme Court did was carry out this command. But the code uses the term in reference to the situation in which, through no fault of the voter, the ballot is damaged or defective. The Beckstrom case (the "no. 2 pencil" case) merely refused to void an election because of innocent failures to comply with technical requirements of state election law. Never had Florida courts voided an election just because some voters had so spoiled their ballots that tabulating machines in good working order could not read them—let alone because the machines hadn't recorded "dimpled" ballots as votes; the machines are not supposed to record dimpled ballots.

The recount ordered by the Florida Supreme Court on December 8 could not have been completed (with judicial review to make sure it had been conducted properly) by the "safe harbor" deadline of December 12. So if the U.S. Supreme Court hadn't entered the fray, Congress might well have had to choose between rival slates of Florida electors in January. That would have been a donnybrook, possibly resulting in the appointment of an acting president on January 20 when Bill Clinton left office, further embittering our politics, destroying the new president's transition and maybe his legitimacy as well. Article II is a tool for preventing such messes by preventing state interbranch struggles over the rules for selecting presidential electors. The legislature is to set the rules; the courts are not to change them—especially after the outcome of the election is known.

You acknowledge the crisis potential but argue that pragmatic concerns, at least if unacknowledged, have no place in adjudication. I doubt that you really believe this. The Warren Court decisions that you admire were not emanations of the constitutional text. Earl Warren, William Brennan, and Thurgood Marshall were not legal theoreticians. Their decisions were not compelled by existing legal understandings but rather were practical solutions to perceived social problems, as was Bush v. Gore. None of the famous Warren Court cases is notably candid. In Brown v. Board of Education, for example, the court pretended not to be overruling Plessy v. Ferguson. If this is "duplicity," your favorite judges are duplicitous. I prefer to say that like all public rhetoric, judicial rhetoric is rarely completely candid. No sophisticated legal professional takes seriously the passage you quote from Planned Parenthood v. Casey about the Supreme Court's having "to speak and act in ways that allow people to accept its decisions on the terms the Court claims for them, as grounded truly in principle, not as compromises. …"

A more troublesome point is that, as I point out in my book, the justices doubtless care who their colleagues and successors will be, and of course it makes a difference who the president is when a vacancy occurs. This fact will forever cast a shadow over Bush v. Gore. But it is as germane to the liberal justices, whom you do not accuse of impropriety, as to the conservatives. (Your nose for improprieties is selective; you report without criticism improper leaks by an unnamed liberal justice and by a number of unnamed Supreme Court law clerks—indeed you rely on those leaks as evidence of the conservative justices' wrongdoing.) Concerns of this sort, operating unconsciously, might cause a justice to notice features of the case that he or she might otherwise not notice. If that is "bias," it is inevitable; it is also a compelling argument for our diverse judiciary, composed of judges who, having different values and experience, notice different features of the cases they hear.

So, you may be right that had the shoe been on the other foot the conservative justices would not have stopped the recount. But this does not prove corrupt motives (nor the rumors you recount in your book). We must imagine an all-Republican state court ordering a recount, and Gore challenging it. Such a court's opinion would not have been festooned with the populist rhetoric of the Florida Supreme Court that must have set the conservative Supreme Court Justices' teeth on edge. It would have been more formalistic, leaving less room for an Article II challenge. Still, unconscious preference for Bush's becoming president might have made the conservative justices more alert to the weaknesses in the Article II and equal protection challenges in the hypothetical case—and the liberal justices more alert to the strengths of those challenges. The shoe would have been on the other foot, merely pinching a different set of corns.